The City of Wauwatosa ("City") and the Wauwatosa Professional Firefighter's
Association,
Local 1923, IAFF-CLC, ("Union") are parties to a collective bargaining agreement
("Agreement"),
which Agreement provides for final and binding arbitration of disputes arising thereunder.
The
Union, with the concurrence of the City, requested that the Wisconsin Employment Relations
Commission designate a commissioner or staff member to serve as arbitrator of the instant
dispute.
The undersigned was so designated. A hearing was held on December 17, 2008, in
Wauwatosa,
Wisconsin, at which time the parties were afforded full opportunity to present such
testimony,
exhibits, and arguments as were relevant. At the parties' discretion, no stenographic
transcript of the
proceeding was made. Thereafter, each party submitted an initial brief and a reply brief, the
last of
which was received on February 6, 2009, whereupon the record was closed.

Now, having considered the record as a whole, the Arbitrator makes and issues the
following
award.

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ISSUE

The parties agreed to allow the undersigned to frame the issue based on the evidence
and
arguments presented. A written proposed statement of the issue was presented at hearing by
the City,
which read as follows:

1. Whether under CBA the issue is arbitrable when Union contends
prescription
was not dispensed in the amounts requested by union?

2. Whether City violated contract when grievant was provided
prescribed
medication for the co-pay provided in contract but when medication is
dispensed over time where there is a high risk of waste if dispensed at one
time?

A written proposed statement of the issue also was presented at hearing by the Union,
which read
as follows:

Did the City violate the cba when it refused to release the full amount of a prescribed
medication in one visit to a pharmacy?

The undersigned adopts the following statement of the issue:

1. Is a dispute related to the disbursement of a prescription
medication
substantively arbitrable under the Agreement?

2. Did the City violate the Agreement when it caused the
amount of medication
identified in a single prescription to be disbursed in a staggered fashion over
a period of time? If so, what is the appropriate remedy?

REVELANT CONTRACT
LANGUAGE

Article VII ­ Insurance

. . .

H. Retail Prescription. Effective January 1, 2005, employees shall
pay $12 for
each generic prescription, $20 for each formulary prescription, and $31 or
20% (whichever is greater) not to exceed $65 per prescription for each non-formulary
prescription. Effective January 1, 2007, employees shall pay $15
for generic prescriptions, $24 for formulary prescriptions, and $40 or 20%
(whichever is greater) not to exceed $80 per

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prescription for non-formulary prescriptions. Effective November 1, 1994,
the quantity of prescribed drugs available each time a prescription is filled
under the RESTAT drug card program shall be the greater of 100 units or a
34 day supply.

. . .

Article XXVI ­ Grievance Procedure

Section 1: The Union and the City recognize that grievances involving interpretation,
application or enforcement of the terms of this Agreement, and the application of
work rules, regulations and conditions of employment should be settled promptly and
in a just manner.

. . .

Article XXVII ­ Final and Binding Arbitration

Section 1: . . . The arbitrator shall neither add to, nor detract from, nor modify the
language of this Agreement in arriving at a determination of any issue presented, and
shall expressly confine himself to the precise issues submitted for arbitration.

. . .

Section 3: . . . The arbitrator shall have initial authority to determine whether or not
the dispute is arbitrable under the terms of this Agreement, but only in the event that
a challenge to such issue was duly made in writing prior to the selection of the
arbitrator and served upon the other parties. Once it is determined that the dispute is
arbitrable, the arbitrator shall proceed in accordance with this Article to determine
the merits of the dispute submitted to arbitration.

. . .

BACKGROUND

Since 1992, the Grievant has been employed as a firefighter with the City's Fire
Department.
As a member of the Grievant's family, the Grievant's spouse is covered by the health
insurance
benefits set forth in the Agreement, which benefits include a prescription drug program.

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The Grievant's spouse has a medical condition which is treated with several
medications.
One of these medications, Rebif, is quite expensive. A single dose of Rebif costs
approximately
$193. The medication is prescribed to the Grievant's spouse in a quantity of ninety-six doses,
the
cost for which approaches $20,000 for the City. The Grievant's spouse takes Rebif three
times per
week, allowing a ninety-six dose prescription to last for approximately eight months.

In addition to being expensive, Rebif is particularly susceptible, in various ways, to
waste.
The medication, for example, has specific refrigeration requirements, and improper storage
could
cause it to become spoiled. A household refrigerator can provide the correct temperature
settings,
but is not the ideal storage container for the medication. Further, the medication can and
often does
cause significant, sometimes life-threatening side-effects. Even patients who have tolerated
Rebif
in the past can quickly develop side-effects that will require them to stop taking the
medication
immediately. Because of these issues, the standard approach in the pharmaceutical industry is
to limit
a patient taking Rebif to a thirty-day supply of the medication. The Grievant's spouse
typically
retrieves other medications from the pharmacy on a monthly basis.

Out of concern for the cost of a single Rebif prescription ­ which would have
far exceeded
a $10,000 maximum established by RESTAT, the City's pharmaceutical benefit manager
­ the City
has attempted to orchestrate an arrangement under which doses of Rebif could be released to
the
Grievant's spouse in a staggered fashion, while still requiring only one co-payment for each
prescription.(1) At one point, for
example, the City and the Union's health-care liaison, Dave Tippel,
agreed that the Grievant's spouse would have the Rebif prescriptions released from the
pharmacy
in three batches of thirty-six, thirty-six, and twenty-four doses.(2) The pharmacy where the prescription
was being filled, however, repeatedly attempted to charge a co-payment on visits when one
was not
owed. Out of frustration with such glitches, the Grievant filed the grievance that is before
me,
asserting entitlement under the terms of the Agreement to the entire ninety-six doses of Rebif
at such
time as the prescription was filled.

Subsequent to the filing of the grievance, the City's health and productivity
coordinator,
Michael Loy, attempted to remedy the problem by devising a new prescription release
strategy. First,
Mr. Loy arranged for the release of a thirty-day supply of the Rebif to the Grievant's spouse
and
then, under a subsequent arrangement, for the release of a fifty-day supply. As the written
summaries
of these refill schedules reveal, however, there was much confusion on Mr. Loy's part that
undermined the acceptability of such arrangements, including a mistaken belief that each
pre-filled
syringe would provide two doses and miscalculations as to the number of doses that would be
required to make a thirty-day or fifty-day supply. Ultimately, the Grievant became frustrated
with
the various misunderstandings related to the Rebif prescription, and this matter was pursued
to
arbitration.

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Prior to the time when the current dispute arose, the City and the Union never have
discussed
whether a medication could be dispensed in a staggered fashion. Although other City
employees are
taking expensive medications covered under the City's drug program, no one has ever
demanded that
they be dispensed in such quantities.

DISCUSSION

The City's position in this case is that the terms of its Agreement with the Union do
not
require release of all ninety-six doses when the Rebif prescription is filled. In fact, the City
contends
that the Agreement does not even address the subject of how medications are to be disbursed,
rendering this matter unarbitrable due to lack of subject matter jurisdiction. According to the
City,
the retail prescription provision set forth at Article VII, Section H merely establishes the
co-payment
rates and how much of a prescription a covered individual is entitled to for a single
co-payment. The
proper disbursement of medications, the City asserts, is a subject that has been left, as it
should be,
to the expertise of pharmacists and pharmaceutical benefit managers. Moreover, the City
emphasizes
that staggered disbursement is particularly important in the present case, because the Rebif
has been
prescribed to the Grievant's spouse in such large quantities and it is so expensive and
susceptible to
waste.

At the outset, it is necessary to address the City's contention that this matter is not
substantively arbitrable. The Agreement confers to an arbitrator the authority to rule on
challenges
to arbitrability. The Agreement also, however, explicitly states that the arbitrator's authority
to do
so shall be limited to cases in which such challenges were made, in writing, prior to the
selection of
the arbitrator and served on the other party. The record before me does not establish that
such a
procedure was followed, nor do the arguments submitted by the parties address that issue.
There is
no need, however, to dwell on this apparent shortcoming. Under the terms of the Agreement,
grievances are to relate, among other things, to "matters involving interpretation, application
or
enforcement of the terms of [the] Agreement". Here, the issue in dispute is precisely the
subject
addressed by Article VII, Section H. Thus, whether it is because of the
City's possible failure to
follow the contractually-established procedural requirements for bringing arbitrability
question
before an arbitrator or because the subject of this dispute is one that is addressed directly by
the
terms of the parties' Agreement, I am compelled to conclude that this case is arbitrable.

I also have concluded that the City's consistent unwillingness to provide a full
prescription
of Rebif to the Grievant's spouse ­ even though that prescription has never exceeded
the greater of
100 units or a 34 day supply ­ is a violation of the Agreement. It is true, as the City
suggests, that
the first two sentences of Article VII, Section H address the amount of co-payment required
under
the retail prescription drug benefit. Further, the third and last sentence of the provision
certainly
functions, as the City also argues, to place a cap on the quantity of medication that can be
had for
a single co-payment, but it does more than that. By establishing the maximum "supply" that
is to be
"available" to a covered individual "each

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time a prescription is filled", the sentence, in very plain language, says how much
medicine a person
gets to take home. To not recognize that meaning would be to detract from the Agreement.
And to
find that the sentence allows the City to store part of the "supply" at the pharmacy or
anywhere else
would be to add to the Agreement. It is outside of my contractually-conferred jurisdiction to
do
either.

Because this language is unambiguous, there is no need to consider the bargaining
history
evidence presented in this case. Further, much of the other evidence presented by the City
­
regarding the exorbitant cost of Rebif, its susceptibility to waste, the industry standard for
disbursing
Rebif prescriptions, and the evidence regarding how often the Grievant and the Grievant's
spouse
visit the pharmacy to retrieve other medications ­ turns out to be irrelevant.
Article VII, Section H
does not provide for exceptions, even in such special circumstances.

CONCLUSION

The grievance is sustained. The City shall provide the full amount of future Rebif
prescriptions, provided such amount does not exceed the limit specifically set forth in the
Agreement. Further, the City shall make the Grievant whole for out-of-pocket costs, if any,
incurred
as a result of the City's breach of the Agreement.

Dated at Madison, Wisconsin, this 28th day of April, 2009.

Danielle L. Carne, Arbitrator

DLC/gjc

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1 Such arrangements never created a
dispute between the City and the Union with regard to co-payments. The City has
consistently acknowledged that each prescription should only result in a single $24.00
co-payment.

2 There is no contention that such
arrangements were in any way binding.